ISBA - The Voice of British Advertisers

BRIEFING PAPER - AUGUST 2005 Olympics Bill

ISBA is assessing the potential impact on advertisers of the ‘Olympics Bill’ which is due to become law in coming months, following the announcement that London will host the 2012 Games. The Bill is intended to prepare widely for hosting the Games.

Amongst other provisions, the Bill sets out powers to ‘protect’ the Games from unauthorised commercial exploitation and ‘ambush marketing’ (marketing activity by someone who is not an official sponsor, which seeks to take advantage of the goodwill associated with an event). Specifically, the Bill will update and widen existing Olympic symbol protection legislation in line with IOC requirements and allow regulations to be made to restrict unauthorised advertising and trading around Olympic venues.

This paper, which was produced with the support of analysis from specialist advertising and marketing lawyers at Osborne Clarke (see http://www.marketinglaw.co.uk) sets out the key issues.

The Olympics Bill and ambush marketing

In the UK, some level of ambush marketing has to date been legally permissible, provided the activity 

does not infringe trade marks or copyright, breach contractual rights or create the false impression that the brand in question is an official sponsor or otherwise officially connected with the event. However, there is a growing trend for host governments of major sporting events to introduce specific anti-ambush laws that go beyond the traditional legal protections. The first published version of the Olympics Bill suggests the UK Government plans to follow that route.

General ban on Olympic allusions

The Bill will create a "London Olympics association right" (Schedule 3, paragraph 1). This will effectively be a new, specific form of intellectual property right, enforceable by the London Organising Committee that would:

"confer exclusive rights [on the London Organising Committee and its licensees] in relation to the use of any visual or verbal representation (of any kind) in a manner likely to create in the public mind an association between the London Olympics and (a) goods or services; or (b) a person who provides goods or services"

Subject to certain exceptions, use of any visual or verbal representation in the course of trade would be an infringement of the London Olympics association right and would be unlawful under the Bill (Schedule 3, paragraph 2).

Exceptions

The London Olympics association right would not be infringed by use of a registered trademark in relation to goods or services for which it is registered (paragraph 6).

Use by a person of their own name or address would also not be an infringement provided the use is "in accordance with honest practices in industrial or commercial matters"(paragraph 7). Subject to that same proviso, representations which are "necessary to indicate the intended purpose of a product or service" or of indications concerning the kind, quality, quantity, intended purpose...or other characteristics of goods or services" would also be permitted.

Ban on specific 2-word combinations

Combining the word "games" or "2012" (whether in numerical or fully written form) with any of the following words would be a problem: "gold", "silver", "bronze", "London", "medals", "sponsor" and "summer". The combination of "2012" and "games" is also presumed to be an infringement.

Trademark protections

Separately, the IOC has taken the unusual step of applying to register "2012" as a community trade mark in relation to an extremely wide specification of goods and services. See:

http://webdb1.patent.gov.uk/RightSite/formexec?DMW_DOCBASE=ibis&DMW_INPUTFORM=ibis/ohim.htm&ohimnum=E4482147

Advertising in the "vicinity" of venues

The Olympics Bill additionally gives the Secretary of State wide new powers to control poster advertising, field marketing and other marketing activities in the "vicinity" of the London Games (sections 17-22).

Under these powers, poster advertising by non-sponsors could potentially be banned. However, there is little indication at this stage as to the nature of the controls that will be imposed.

Freedom of speech

UK advertisers have always been free to make reference in their communications to topical news events and current issues. They have just had to be careful not to infringe trademark rights or copyright, and to ensure that the reference does not amount to "passing off" by falsely suggesting some kind of commercial linkage between the advertiser and the event. If taken to the letter, the provisions of the Olympics Bill would remove this freedom.

Reduced media and advertising spend

The ban on references and allusions to the Olympics could have a significant adverse impact on

advertising revenues. The usual "Olympics factor" in uplifting media spend could be severely dented, with brands finding it too risky to run advertising with sporting imagery, themes or allusions.

ISBA action/ going forward

The provisions of the Bill give a great deal of power to the London Olympic Association. However whilst the powers set out in the Bill appear sweeping, they are also general: the actual level of impact will depend on specific regulations developed in coming years from the authority the Bill provides.

ISBA believes it unlikely that the Government will be able to accept many concessions on the face of the Bill as it is likely that that the IOC stipulated much of this during the bidding process for the host city. That said, there remains much to be decided and clarified through a process of dialogue once the Bill becomes law and the statutory body is up and running.

Working with others, ISBA will input into lobbying activity on the Bill through briefings with Lords and with the Committee which will discuss the Bill.

Further efforts will concentrate on lobbying the relevant bodies once the Bill becomes law and the statutory body is set up to ensure regulations aim to protect legitimate sponsors from ambushing, whilst at the same time ensuring reasonable freedoms for advertisers before and during the games.

March, 2011

ISBA response to DCMS consultation

‘Regulations on Advertising Activity and Trading around London 2012’

ISBA embodies some 400 of the UK’s largest advertiser companies, and also counts LOCOG itself in membership, which gives further good opportunity for continuity and understanding.

We expect a number of interested representative organisations and individual companies to make quite detailed inputs and given our locus, we are confining our response to the specific areas of Sections 2 - Introduction, 3 - Advertising Activity and 5 - Event Zones & Periods.

Thank you for the opportunity to comment further to the inputs we have already made face-to-face on this matter as the representative body for British advertisers.  We are pleased to see that a number of the points we have already made have been noted and have shaped this consultation.

First we would reiterate the qualification on ‘ambushing’ which we offered in person.  Much marketing activity is by its very nature opportunistic and seeks not only to (re-)position a product or service most advantageously, but also to (re-)position competitors and/or deny them access to certain positions they might choose to take.

This can be achieved through messaging, by way of the media channels used and how they are deployed.  Brands therefore routinely seek to ‘ambush’ competitors and since this is done on a level playing field on which skill is the only consistent competitive advantage, it is considered acceptable, standard practice.  In this sense marketing is perhaps somewhat akin to a continuous game of chess.

The Olympic Games offer participant partners some opportunity to rise above this, albeit in return for significant outlays.

We fully understand Government’s desire to ensure it meets the obligations required of it by the International Olympic Committee when it made its bids to host the Games in London.  The key issue for us in responding to this consultation is whether the proposed regulations are not discriminate and whether they deliver in a sufficiently light-touch and proportionate manner.

Section 1 - Introduction

• We support the proposal to prevent street trading and limit the amount of pamphletting and product sampling activity during the games in order to minimise street congestion and litter.  However, we would observe that enforcement must be consistent and indiscriminate for it to be credible and beyond legal challenge, and consider that this will present serious challenges.
• We note the reference to the clearance of 10,000 billboards from the city of Athens during the 2004 Games.  We have been told that, whilst it might have been an appropriate measure for the duration of the Games, many of the cleared sites were not reinstated.  We understand that led to the unintended - and, for advertisers, unwelcome - consequences of reductions in out-of-home advertising opportunities and increased prices for the remaining billboard inventory.  We caution against any measures which might backfire similarly after London 2012, and therefore welcome for all due clarity and certainty confirming the ephemeral nature of the regulations.
• We welcome the clear stated intention for laws to be reasonable and proportionate.  The challenge is in the delivery of this admirable goal.
• The variations in legislation in the different nations are unfortunate as they further complicate things for advertisers seeking to advertise during the Games.  ISBA will be making strenuous efforts to help and guide its members as best it can over the coming months.
• We will also be recommending that our members seek all appropriate assurances and warranties from their suppliers of marketing communications that all relevant activity during the Games is compliant with the regulations. This is appropriate as most authorisations will be sought by and granted to media-owning organisations which will then market their assets to our members.

Section 3 - Advertising Activity & Section 5 - Event Zones & Event Periods

• We welcome the notion that regulations will only apply for the minimum amount of time with respect to each location/event.  In tandem with this, we therefore support the proposal that local authorities are given ‘fast track’ powers to act within shorter time windows than is usual, provided that such powers are temporary and only persist for the duration of the Games and do not overhang in such a way as they might then come to be abused.
• We also believe that Government has succeeded in drawing exclusion zones much more tightly than, yet just as effectively as, previous Games’. In this sense, the overriding objective of proportionality will in our view be met.
• We understand Government’s desire to capture all forms of out-of-home and ambient marketing communications.  However, we question the exemption which provides for demonstration of support for, or opposition to, a person’s or body’s views.  Whilst the right to express an opinion is a most valuable privilege in a free, civilized and democratic society, we question why that right should only be afforded to individuals.
• We suspect that the authorities will find it very hard reasonably, let alone proportionately, to enforce the provision relating to clothing on which an advertisement (as defined widely in this consultation) is displayed.

 

Traders and advertisers get extra time to apply for go-ahead to operate near London

 

Date: 03.02.12

Businesses wanting to trade or advertise near London 2012 Olympic and Paralympic venues have been given an extra month in which they can apply for permission.

Traders who require authorisation must apply by the end of March for permission to operate at 27 special 'Event Zones'. These usually stretch no more than 200 metres from stadiums and sports facilities. The deadline for advertisers who require approval to advertise in these areas has also been extended to 31 March 2012.

There are a number of exceptions where certain forms of trading and advertising do not require authorisation. Examples include food and newspaper deliveries, advertising on buses and taxis carrying passengers through an Event Zone, advertising inside a building, and most existing shop signage.

With now less than six months to go until the start of the London 2012 Olympic Games, businesses in [XYZ - insert local reference] are being urged to ensure they have got their paperwork in order and got permission, where it is required. 

The rules, which can be found on London 2012's website - www.london2012.com/advertisingandtrading - will ensure that spectators and those taking part in the Olympic and Paralympic Games can access venues easily and safely, and that the Games have a consistent look, without unauthorised marketing close to venues.

The website explains where rules on advertising and outdoor trading near venues will be implemented (with a postcode checker), how they will be enforced and when they will apply - on competition days, often the day before and, in the case of the Olympic Park, a few days earlier. The website spells out the application process and authorisation criteria, includes a detailed guide and shows examples of practices that do not require authorisation, or can only be carried out if authorisation has been obtained. 

Restrictions on advertising and outdoor trading are a requirement of the contracts that host cities sign with the International Olympic Committee. They are now common practice at major international sporting events.

The Advertising and Trading Regulations cover all trading in open public places within 'Event Zones' during the periods in question - including roads and any land that the public has access to, and all forms of advertising.

Authorisation has to be obtained for all open air trading activities including selling from temporary buildings like marquees, busking and collecting for charity. It will also have to be obtained for advertising, though on billboards and poster sites, for example, authorisation will be reserved primarily for sponsors of the Games. 

Advertising that is not expected to be permitted includes advertising by non-sponsors which aim to engage in 'ambush marketing', such as temporary advertising, distributing direct advertising literature, and arranging for advertising 'giveaways' in an Event Zone.

The public application process for advertising is now open until the end of March 2012, and applications can be made to the London Organising Committee of the Olympic Games and Paralympic Games (LOCOG) by email or by post.

Applications for permission to trade outdoors need to be made to the Olympic Delivery Authority (ODA) by the same date - this can also be done online. There is a right to ask for a review of the two organisations' decisions by the ODA, which is a public body.

The ODA is responsible for enforcement of the Regulations and is working with 36 local authorities in England, Scotland and Wales, reflecting the Olympic events in Buckinghamshire, Dorset, Essex and Hertfordshire, cycling in Surrey, football in Cardiff, Coventry, Glasgow, Manchester and Newcastle, as well as at the Olympic and Paralympic venues in London.

The ODA will designate around 250 trading standards officers and other enforcement officers who will be fully trained in the detail of the Regulations and better regulation objectives.  

ODA Chief Executive Dennis Hone said: 'We want to give businesses every opportunity to understand the rules and apply for permission, where this is needed. That is why we have extended the closing date. Advertising and trading regulations are temporary measures in place for only a few weeks near Olympic and Paralympic venues. Our aim is to make sure that spectators can get to watch the sport they have paid for - without delay or risk.'

Notes:

1.     The London Olympic Games and Paralympic Games Act 2006 required the Secretary of State for Culture, Olympics, Media and Sport and Ministers in Scotland and Wales to make regulations about trading and advertising in the vicinity of London Olympic events. Detailed regulations are currently being considered by the UK Parliament, the Scottish Parliament, and the National Assembly for Wales. 

2.    Contravening the Regulations is punishable by fine of up to £20,000 at Magistrates' Courts in England and Wales, and Sheriff Courts in Scotland. There is no limit to the fine that a Crown Court may apply, however conviction would not lead to imprisonment.

3.    No compensation will be available for people who are prevented from trading or advertising. However the ODA is empowered to offer financial assistance to 'habitual' traders who are not able, for instance, to site pitches in their usual places and have to seek to trade elsewhere - for instance by obtaining an additional licence to trade.

4.    The need to secure authorisation from the ODA (for outside trading) or LOCOG (for advertising) does not replace the legal requirements that apply at all other times. Even if an authorisation has been granted by the ODA or LOCOG, traders and advertisers must ensure that they already hold, during the Olympic and Paralympic Games, any other licence, consent, certificate or permission that is necessary.

5.     'Ambush marketing' describes activities undertaken by commercial bodies not sponsoring an event which nevertheless suggest that they or their products are associated with the event or which seek to exploit the interest in the event for commercial purposes by exposing their brands to spectators at the event and/or broadcast viewers.

6.    A full list of Event Zones where the Regulations will apply can be found in the detailed notice at www.london2012.com/documents/oda-publications/detailed-provisions-of-the-advertising-and-trading-regulations.pdf